Opinion
01-23-2024
Alhassan ABDULFATTAAH, Plaintiff–Appellant, v. RIVERBAY CORPORATION et al., Defendants–Respondents,
The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for appellant. Smith Mazure, P.C., New York (Louise M. Cherkis of counsel), for respondents.
The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for appellant.
Smith Mazure, P.C., New York (Louise M. Cherkis of counsel), for respondents. Oing, J.P., Gesmer, Singh, Rodriguez, Michael, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 28, 2022, which granted defendants Riverbay Corporation, Marion Scott Real Estate, Inc., and the Co–op City Department of Public Safety’s (property defendants) motion for summary judgment dismissing the complaint and all cross-claims against them, unanimously affirmed, without costs.
[1, 2] The property defendants established prima facie entitlement to summary judgment. The evidence showed that a masked gunman targeted plaintiff and shot him without any warning as he entered the public vestibule of his friend’s residential apartment building, at approximately 9:30 p.m. This sequence of events was inconsistent with a finding that property defendants alleged inadequate security measures in and about the premises were a substantial cause of the assault on plaintiff, thus precluding a finding that plaintiffs injuries were proximately caused by property defendants’ conduct (see Maheshwari v. City of New York, 2 N.Y.3d 288, 295, 778 N.Y.S.2d 442, 810 N.E.2d 894 [2004]; Wong v. Riverbay Corp., 139 A.D.3d 440, 441, 32 N.Y.S.3d 69 [1st Dept. 2016]). The shooter’s intent to kill plaintiff was demonstrated by the six shots he fired at him, at point blank range, which struck plaintiff in the back, torso, and other areas of his body, resulting in his paralysis from the waist down. The shooter did not harm another individual who was in the vestibule with plaintiff. The shooter’s actions were an intervening act, not foreseeable in the normal course of events, and were independent of defendants’ conduct in providing minimal security measures in the immediate vicinity of the property in question (see Maheshwari, 2 N.Y.3d at 295, 778 N.Y.S.2d 442, 810 N.E.2d 894). There was no evidence of past similar criminal violence in the vicinity of the shooting to raise a triable issue that the targeted shooting was foreseeable and warranted additional security precautions (see generally Maheshwari, 2 N.Y.3d at 294, 778 N.Y.S.2d 442, 810 N.E.2d 894; Wong, 139 A.D.3d 440, 32 N.Y.S.3d 69).
[3] Moreover, this Court has held that "[a] landowner’s duty to take minimal security precautions does not extend to exterior public areas, including walkways and vestibules" (Wong, 139 A.D.3d at 440, 32 N.Y.S.3d 69; see also Palaj v. Marion Scott Real Estate, Inc., 169 A.D.3d 420, 91 N.Y.S.3d 884 [1st Dept. 2019]; Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 155, 694 N.Y.S.2d 445 [2d Dept. 1999]). Nonetheless, the record reflects that defendants did provide minimal security measures in the form of a locked, manned lobby area, a well-lit vestibule, a working buzzer-entry panel, and multiple surveillance cameras in the immediate area. Plaintiffs opposition, founded upon expert opinions claiming, among other things, inadequate staffing of the private law enforcement entity hired by defendant owner Riverbay, as well as local news articles addressing Co-op City crime and overtime payment issues that affected law enforcement coverage in the residential complex, failed to raise a triable issue (Leyva v. Riverbay Corp., 206 A.D.2d 150, 153-154, 620 N.Y.S.2d 333 [1st Dept. 1994]). Plaintiffs argument that, if all the designated law enforcement posts had been properly manned, the shooter likely would have been deterred from carrying out his attempted killing of plaintiff is speculative given the facts here and fails to raise a triable issue (see e.g. Villa v. Paradise Theater Prods., Inc., 85 A.D.3d 402, 403, 924 N.Y.S.2d 364 [1st Dept. 2011]). We have considered plaintiff’s remaining arguments and find them unavailing.